(dissenting) — I dissent.
In view of the majority's concession that no proximate cause exists2 and the fact that the City's actions supporting the trial court's judgment are not actionable, this case should be dismissed. Plaintiff's judgment is essentially based on two points, neither of which is actionable as a matter of law: (1) the downzoning of Parkridge's property by the City Council; and (2) the requirements of an Environmental Impact Statement (EIS). The majority for some unexplainable reason remands this case for further factual development to determine whether the actions of the city officials, who are not protected by immunity, proximately caused Parkridge's damage. In other words, the majority says remand to the trial judge so he can dismiss it. I would dismiss the case now. The actions of the City, its officials and its employees were not wrongful. Furthermore, as the majority concedes, proximate cause does not exist between the City's actions and Parkridge's damages.
This case boils down to two actions by the City and its officials: (1) the downzoning; and (2) the EIS requirements.
*811As far as the downzoning is concerned the majority concedes that these actions of the City Council are immune from tort liability. Therefore, the downzoning cannot support the plaintiff's judgment. The next issue is whether the City's requirements of an EIS are actionable and can be used as evidence to support plaintiff's judgment.
Regardless of whether the zoning was correct for Park-ridge's proposed apartment complex, the City Council may request an EIS and an unfavorable EIS may, in and of itself, defeat the developer's permit. In West Main Assocs. v. Bellevue, 49 Wn. App. 513, 742 P.2d 1266 (1987), review denied, 112 Wn.2d 1009 (1989), the city council exercised its authority under SEPA and rejected the project, even though it complied with the zoning ordinances, on the basis of significant adverse environmental impact which could not reasonably be mitigated. In West Main Assocs., the Court of Appeals held that the City's disapproval of the building design was justified solely on environmental grounds. The court stated at page 525:
Thus, the SEPA standards or policies are not "elevated" above specific zoning ordinances, but rather they provide general guidance for determining whether the environmental impacts of an otherwise acceptable project require the denial of, or the imposition of conditions on, the project. In this regard, our courts have repeatedly stated that SEPA is not a substitute for local zoning ordinances, but "overlays local ordinances and must be enforced even where a particular use is allowed by local law or policy." Cook v. Clallam Cy., 27 Wn. App. 410, 415, 618 P.2d 1030 (1980), review denied, 96 Wn.2d 1008 (1981); West Main Assocs. v. Bellevue, 106 Wn.2d 47, 53, 720 P.2d 782 (1986); Polygon [Corp. v. Seattle, 90 Wn.2d 59, 65, 578 P.2d 1309 (1978)]; RCW 43.21C.060.
Furthermore, the court rejected at page 526 appellant's contention that the council's action was a denial of its "vested rights."
Though a vested right fixes the ordinances with which a building permit and subsequent development must comply, SEPA gives a municipality discretion to deny an application because of adverse environmental impacts *812even if the project meets all other local requirements. West Main Assocs., 106 Wn.2d at 53.
In the present case, the building of a 50-unit apartment building in a residential neighborhood is a major action, significantly affecting the quality of the environment. Under these facts, SEPA mandates the preparation and circulation of an EIS. Polygon Corp. v. Seattle, 90 Wn.2d 59, 65, 578 P.2d 1309 (1978); RCW 43.21C.030(1), (2)(c). The effect of the majority opinion will be to expose the City to tort liability anytime it requests an EIS. This in turn would dissuade the City from requiring an EIS before it issues a permit. A permit issued for a major action without an EIS would be completely contrary to the laws, goals and purpose under SEPA.
Furthermore, the majority fails to recognize that SEPA decisions are discretionary, West Main Assocs., 49 Wn. App. at 525, and are therefore immune.
The City's decision to require an EIS can be characterized as a discretionary governmental act; therefore, it cannot form the basis for tort liability. Evangelical United Brethren Church v. State, 67 Wn.2d 246, 252, 407 P.2d 440 (1965); King v. Seattle, 84 Wn.2d 239, 245, 525 P.2d 228 (1974). The test to determine whether a city's act was discretionary and thereby immune is to consider the following questions:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
*813Evangelical United Brethren Church v. State, supra at 255. If these questions can be answered in the affirmative, then the challenged act can be classified as nontortious. Under the analysis of Evangelical United Brethren Church v. State, supra, the City's requirement of an EIS is a discretionary act which cannot form the basis for tort liability.
The City's requirement of an EIS involves the State's environmental policy to protect efforts which will prevent or eliminate damage to the environment. RCW 43.21C.010. The requirement of an EIS, to the extent that the building permit is for an action significantly affecting the environment is necessary for the realization of the State's policy. The City's decision requires an evaluation of various environmental factors and their impact on the quality of the environment. Finally, the City through SEPA has the requisite constitutional and statutory authority to mandate the requirement of an EIS. Polygon, at 65-67. Polygon determined that SEPA confers upon the City the authority to apply the standards expressed in SEPA to the building permit application of a particular property owner.
Furthermore, recent case law supports the above conclusion that decisions made pursuant to SEPA are discretionary. In Polygon, the court stated that "[t]o the extent that the issuance of a building permit is a 'major action significantly affecting the quality of the environment', that issuance is no longer a ministerial act." Polygon, at 65. In Juanita Bay Vly. Comm'ty Ass'n v. Kirkland, 9 Wn. App. 59, 73, 510 P.2d 1140, review denied, 83 Wn.2d 1002 (1973) the court found
[t]he change in the substantive law brought about by SEPA introduces an element of discretion into the making of decisions that were formerly ministerial, such that even if we assume, arguendo, that the issuance of a grading permit was, prior to SEPA, a ministerial, nondiscretionary act, SEPA makes it legislative and discretionary.
Juanita Bay, at 73, quoted in Polygon, at 64. In Seattle Shorelines Coalition v. Justen, 93 Wn.2d 390, 394, 609 P.2d 1371 (1980), the court noted the permit "process is *814almost entirely ministerial, except for the superintendent's exercise of discretion with regard to environmental considerations, pursuant to RCW 43.21C and our holding in Polygon Corp. v. Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978)."
In conclusion, the actions of the City in downzoning the Parkridge property and in requiring an EIS cannot be considered the basis for liability. Nonetheless, the majority holds that tortious interference exists because of the actions of the city officials. What exactly did Mayor Uhlman, Councilman Miller and the Superintendent of Buildings do? What flagrant abuse of power by city officials occurred?
Other Actions of City Officials
Mayor Uhlman directed the Superintendent of Buildings to establish a system for notice to the Capitol Hill Community Council, Capitol Hill Land Use Review Board and Capitol Hill Chamber of Commerce of applications for any demolition permits in the Capitol Hill area of Seattle. While this may have been "favoritism", the Mayor, an elected official, was responding to a legitimate request from his constituents. Furthermore he was facilitating the cooperation of various city departments to assist the Department of Community Development in the neighborhood planning effort. Finally, this action was done prior to any action on the part of Parkridge to pursue a demolition permit. Clerk's Papers, at 147-48. Can the democratic action of the Mayor, before Parkridge has made known its business expectancy, be tortious interference? Obviously not.
The superintendent, besides requiring environmental assessment information before issuing any permits, canceled plaintiff's permit based on the downzone action taken by the City Council. This action was not improper. At the time this action was taken, the superintendent did not know the downzoning was arbitrary and capricious. Therefore, when he denied the plaintiff's permit, he did so because it did not comport with the present zoning laws. *815The superintendent did not have the benefit of subsequent court decisions which held that the plaintiff had a vested right in the prior zoning.
Councilman Miller met with members of the Capitol Hill Community Council and Capitol Hill Land Use Review Board prior to 1974 to discuss land use matters affecting the Capitol Hill area. At this meeting he suggested that the group seek downzoning of certain areas. Clerk's Papers, at 147. Does a general suggestion of a public official to concerned community members constitute tortious interference?
Public officials are entitled to a presumption that they have regularly and faithfully performed their duties. 29 Am. Jur. 2d Evidence § 171 (1967). Furthermore, it should be permissible and proper for local governments to consider public sentiment in land use decisions, Anderson v. Peden, 30 Or. App. 1063, 1073, 569 P.2d 633, 640 (1977). "[L]and-use administration at the local level is fundamentally a political process. ... In our system and tradition, political process means democratic process."
The Mayor, Councilman, and Superintendent of Buildings did not flagrantly abuse their power. These officials were carrying out their respective roles as conscientious public servants in governing their city. In sum, it is not a tort for government to govern in a democratic fashion.
Even if the actions of the City can be considered improper there is no proximate cause between the City's actions and Parkridge's damages as conceded by the majority and for the additional reasons set forth below.
Proximate Cause
This court has refused to find proximate cause for damages caused by a City's tortious interference in cases in which the plaintiff might have avoided some or all of his damages by pursuing available administrative remedies accorded him under the law. King v. Seattle, 84 Wn.2d 239, 251, 252, 525 P.2d 228 (1974); see Alger v. Mukilteo, 107 Wn.2d 541, 546, 730 P.2d 1333 (1987). This court has *816emphasized liability should not be imposed on the basis of the voluntary business decisions of the plaintiff: "Municipal liability . . . should not be premised on the independent unsubstantiated decision of a plaintiff that it would be unavailing to seek a possible administrative remedy accorded him under the law." King, at 251.
The Court of Appeals in the present action found "Park-ridge's failure to appeal the City's requirement of an EIS proximately caused its own damages." Pleas v. Seattle, 49 Wn. App. 825, 841, 746 P.2d 823 (1987), review granted, 110 Wn.2d 1021 (1988). The majority incorrectly states the conclusion of the Court of Appeals "rests entirely upon the fact that Parkridge did not appeal the City's demand made in 1974 that it file an EIS." Majority, at 808. The majority supports this incorrect statement upon an incomplete quotation from the Court of Appeals decision. See majority, at 808. The full quotation demonstrates that the Court of Appeals based its conclusion not upon a single failure, but upon a number of failures of Parkridge to pursue its administrative remedies:
Here, if in fact the City's actions were improper, Park-ridge could have sought relief in the superior court. . . .
Although the usual procedures were not followed, the Building Department's letters of December 1973 and April 1974 demanding an EIS are tantamount to declarations of significance. Therefore they should have been appealed within 30 days if Parkridge wished to bypass the EIS process.
In 1978, the City informed Parkridge its first EIS was not adequate and would have to be redone. Again, Park-ridge was obligated to appeal the City's determination within 30 days if it wished to litigate the matter. Instead, it chose to sit on its hands until it had amassed almost $1 million in lost profits and other damages.
(Italics mine.) Pleas, at 840.
Instead of seeking administrative remedies to the City's demands, it chose other avenues to avoid the EIS requirements. In February 1974, Parkridge dropped its efforts to *817obtain a demolition permit and instead applied for a building permit to construct its apartments. Construction would necessarily have required demolition of the nine dilapidated buildings. Clerk's Papers, at 156. In September 1978, Parkridge again requested a demolition permit and this request was denied for the same reason as in 1973, the need for an adequate EIS response. In October 1978, plaintiff petitioned in King County cause 792863, the downzone case, for an order compelling the City to immediately issue, without the necessity for an EIS, permits for the demolition of the nine houses. The motion was denied because the court lacked jurisdiction. In other words, the City's requirement of an EIS was never adjudicated in the rezone case nor was it ever administratively appealed. Parkridge never sought a remedy accorded it under the law. Park-ridge's damages flow primarily from its delay in fulfilling the City's requirement of an EIS. It was not until April 1981 that a final EIS was issued.
In sum, this is a case in which the plaintiff could have easily avoided its damages by pursuing its right to appeal the EIS requirement on at least three different occasions. Nonetheless, the majority contends that "Parkridge pursued all available remedies to facilitate construction of an apartment on Capitol Hill" and "[w]e fail to see how Park-ridge could have done more." Majority, at 809. However, Parkridge could have appealed the City's denial of its permit. For some reason Parkridge did not want to have the EIS requirement reviewed, and tried different tactical moves to bypass this request. Parkridge's decision not to have the EIS requirement reviewed was a "voluntary business judgment" which cannot be the basis of municipal tort liability.
The majority further found the Court of Appeals conclusion unwarranted because the majority erroneously claims that the trial court in the downzone case entered a finding that "Parkridge diligently pursued its legal remedies ..." (Italics mine.) Majority, at 808. The majority then went on to hold:
*818In light of the trial court's finding of diligence, the decision to comply with the City's additional permit requirements as a tactical decision does not preclude Parkridge from pursuing a claim for damages arising from the City's intentional interference.
Majority, at 808.
Contrary to the majority's contention, the trial court in the downzone case did not find that Parkridge "diligently pursued its legal remedies". The trial court said nothing about diligence in regards to legal remedies. The trial court merely found that Parkridge diligently pursued its performance of architectural services and its assembly of data. Parkridge v. Seattle, 89 Wn.2d 454, 465-66, 573 P.2d 359 (1978). Clerk's Papers, at 158. Since there was no trial court finding that Parkridge "diligently pursued its legal remedies”, Parkridge cannot be excused from failing to appeal the City's EIS decision to deny issuance of a permit.
Conclusion
The majority opinion concludes at page 810: "Specifically, we instruct the trial court to limit its calculation of damages to those which arise from nonprotected actions by city officials in tortiously interfering with this project." All city officials involved interfered with the project by down-zoning the land and by requesting various Environmental Impact Statements, but such actions are immune.
If actions of the Mayor, City Councilman and the Superintendent of Buildings are immune from liability for damages by reason of downzoning and requests for Environmental Impact Statements, any incidental actions that such officials used or participated in, on the strategy of downzoning and requesting Environmental Impact Statements, are also immune. Who are these public officials who are not immune that the majority speaks of.
In any event, the City's requirements of an EIS were not the proximate cause of Parkridge's damages. The plaintiff did not seek review in the courts, as he undoubtedly thought he would have lost, as his contentions were that the downzoning and the requests for Environmental Impact *819Statements by the City had caused his delay and damages. Downzoning and requests for Environmental Impact Statements by the City, however, are immune.
I would affirm the Court of Appeals and dismiss the plaintiff's judgment.
Reconsideration denied October 4, 1989.
The majority states: "As not all damages requested by Parkridge can be said as a matter of law to have been proximately caused by nonimmune City actions, and as further factual development is necessary to determine which were and which were not so caused, this issue requires further consideration upon remand." Majority, at 809.